Opinion
354102
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. PATRICK EARL FISHER, Defendant-Appellant.
UNPUBLISHED
Marquette Circuit Court LC No. 19-058181-FC
Before: Murray, C.J., and M. J. Kelly and O'Brien, JJ.
Per Curiam.
Defendant, Patrick Fisher, appeals as of right his jury-trial conviction of armed robbery, MCL 750.529. For the reasons stated in this opinion, we affirm.
I. BASIC FACTS
On June 11, 2019, a masked individual entered Irontown Pasties, pointed a gun at a store employee, and demanded the money from the cash register. The employee gave the masked individual approximately $500. The employee described the robber as white with blue eyes, soft-spoken, approximately 5'6 tall, and around 130 pounds. The robber's physical appearance and mannerisms-although obscured by a mask, hood, and baggy clothing-were depicted on a surveillance video of the robbery. Based on the perpetrator's physical appearance and mannerisms, the shop's owners, John and Lori Cizek, believed that the robber was Fisher, their son-in-law. Fisher's wife and daughter also viewed the surveillance video and believed that the perpetrator was Fisher.
Fisher's wife testified that she had kicked Fisher out of their home and that, since then, they had an acrimonious relationship. She recounted that when Fisher was told to leave the house, he started breaking things and ranting that she owed him $1,000. A video of that incident was played for the jury. The day before the robbery, Fisher sent threatening text messages to his wife referencing death. That same day, he showed up at his daughter's softball game and got into a physical altercation with John Cizek. Fisher was apparently injured during the incident; he also yelled that the Cizeks owed him $5,000. Later that night, he attempted to break the passenger window of his wife's vehicle. When she drove away, he pursued in his own vehicle and attempted to run his wife and daughter off the road. In a Facebook message to a friend, he referenced the altercation with John Cizek earlier in the day, stating that he was going to stab John Cizek and then saying that he was going to beat him up. In a later message, he stated, "Yeah, even business pasty place gonna do stuff, maybe but can't tonight cuz they know, but all good will hold of-hold of you." The next day, the business was robbed.
On appeal, Fisher argues that the text messages are "nonsensical." We disagree. For example, at 4:39 p.m. on June 10, 2019, he texted his wife:
Bye you wish didn't do this cuz (sic) you wish you didn't. You can't come here when I say, but yeah let me just for you again. Want fries with that? Not going to work, just gonna (sic) have fun tonight cuz (sic) if was about us you would be inside with me but now no you absolutely do want it done, So wish you death comes today then cuz (sic) death do us part.Then, at 6:09 p.m., he texted:
Not going work either you staying your mom's then or where cuz (sic) [our daughter] staying here just died and death coming soon, feels like what said at beginning of us told each other we die together now will soon enough cuz (sic) we soulmates and death together and taking death together[.]Although not a model of clarity, the first text message warns that his wife was going to wish that she had not done something. In context, the jury could infer that kicking him out of the house was the thing that she should not have done. Further, his reference of "death do us part" could be interpreted as a suggestion that he was not going to let his marriage end until one or both of them were dead. The second text message warns his wife that staying with her mother would not work, and again, he states that death is "coming soon," references their wedding vows, and talks about them dying together. Thus, notwithstanding their rambling nature, the text messages are not "nonsensical."
Following the robbery, Fisher's daughter called him after viewing the surveillance video and asked if he was going to be arrested. She testified that he told her good-bye, that he loved her, and that he was about to be arrested. When Fisher was arrested, he was not wearing shoes. When the officer apologized for making him walk without shoes, Fisher responded, "It's all good. I a'int (sic) ever getting out anyway."
At trial, the defense theory was that there was a "rush to judgment." He elicited testimony from the Cizeks and his wife suggesting that they believed he was the robber before they even viewed the surveillance video. He also elicited testimony from his daughter that she had heard the adults says that Fisher was the perpetrator depicted in the surveillance video. Finally, he presented testimony from four witnesses who were familiar with him and his mannerisms. Those witnesses testified that they were confident that Fisher was not depicted in the surveillance video and that the person in the video appeared to be a female, not a male. Finally, he elicited testimony that although the store employee was sure that the robber was a male based on the robber's tone of voice, she also admitted that it could have been a female.
II. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
Fisher argues that there was insufficient evidence that he was the individual who committed the robbery. Challenges to the sufficiency of the evidence are reviewed de novo. People v Speed, 331 Mich.App. 328, 331; 952 N.W.2d 550 (2020). "In examining the sufficiency of the evidence, this Court reviews the evidence in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." Id. (quotation marks and citation omitted). We defer to the jury's role of "determining the weight of the evidence and the credibility of the witnesses." People v Bennett, 290 Mich.App. 465, 472; 802 N.W.2d 627 (2010). In addition, conflicts in the evidence are resolved in favor of the prosecution. Id.
B. ANALYSIS
"The elements of armed robbery are: (1) an assault and (2) a felonious taking of property from the victim's presence or person (3) while the defendant is armed with a weapon." People v Smith, 478 Mich. 292, 319; 733 N.W.2d 351 (2007). Additionally, identity is an element of every crime. People v Yost, 278 Mich.App. 341, 356; 749 N.W.2d 753 (2008). Identity can be proven through circumstantial evidence and reasonable inferences arising from the evidence. People v Bass, 317 Mich.App. 241, 264; 893 N.W.2d 140 (2016).
Fisher argues that there was insufficient evidence to identify him as the individual who committed the armed robbery. He points out that he wears glasses, but the store employee testified that the robber was not wearing glasses. He notes that the employee admitted that it was possible that the robber was a female, and he highlights the testimony from the defense witnesses that, based on their observations, they believed the individual in the video was a female. He also directs this Court to testimony from the Cizeks and from his wife that they suspected Fisher was the robber before they had viewed the video. Further, he notes that his daughter testified that she heard the adults say that Fisher was the robber. Fisher asserts that, given the animosity between him and his wife's family, they immediately speculated without a factual basis that he was the one that robbed the store. However, just because there is evidence supporting an inference that Fisher was not the individual who robbed the business does not mean that the jury had to believe that evidence.
Instead, the evidence must be viewed in the light most favorable to the prosecution, Speed, 331 Mich.App. at 331, while deferring to the jury's determination of the weight of the evidence and the credibility of the witnesses, Bennett, 290 Mich.App. at 472. Here, although there was no direct evidence identifying Fisher as the robber, the circumstantial evidence and the reasonable inferences arising therefrom was sufficient to support the jury's finding that Fisher was the robber. The jury heard testimony from the store employee describing the robber as approximately 130 pounds and around 5'6". Fisher's wife testified that Fisher was around that same height and weight. The employee testified that the robber had blue eyes that were the same color and shade as Fisher's eyes. The Cizeks and Fisher's wife testified that they believed the person in the video was Fisher based on his mannerisms, which they had seen over the years, and based on his physical appearance, which they were also familiar with based on their repeated contact with him. Fisher's wife and daughter noted that the robber's clothing was similar to Fishers. And Fisher's daughter, who was also familiar with Fisher, believed it was her father in the video.
Further, there was testimony supporting that Fisher had a motive to rob the shop. In the days leading up to the incident, Fisher repeatedly stated that the Cizeks owed him money. He also sent a Facebook message to his friend the day before the robbery expressly stating that "even business pasty place gonna do stuff," but indicating that it would not be "tonight." The following day, the shop was robbed. Although Fisher characterizes all of his text and Facebook messages as nonsensical, a reasonable juror could infer that the message to a friend was an expression of Fisher's intent to "do stuff" to the Cizeks' pasty shop. The fact that the business was robbed the next day by someone identified to have the same physical build and mannerisms as Fisher is circumstantial evidence that he carried out his stated intent.
Moreover, Fisher told his daughter that he was going to get arrested when she called him after the robbery, and he told the arresting officer that he was never "getting out." Although Fisher argues that his comments could have referred to his belief that he was in legal trouble for his attempt to run his wife's vehicle off the road, the jury could reasonably infer that the comments were because he had just robbed the pasty shop. Similarly, Fisher's comments to the police that he was never going to "get out" allow for a reasonable inference that he had robbed the pasty shop and expected a lengthy prison sentence as a result.
Finally, Fisher presented testimony from four witnesses who opined that the person in the video was a female. The jury, however, did not have to credit that testimony. They were free to instead believe the employee's testimony that she was "sure" it was a male perpetrator, the Cizeks' testimony that they believed it was their son-in-law, Fisher's wife's testimony that she was convinced it was her husband, and Fisher's daughter's testimony that she thought it was her father. The jury could also view the video and form their own opinion as to whether or not the individual depicted was a male or a female. Nothing in the record suggests that the defense witnesses were in a better position than the jury to make a determination as to whether the person in the video was male or female.
In sum, although there was no evidence directly identifying Fisher as the robber, the circumstantial evidence was sufficient for the jury to reasonably infer that he was the person who robbed the store on June 11, 2019.
II. JUROR MISCONDUCT
A. STANDARD OF REVIEW
Fisher argues that the trial court erred by denying his motion for a new trial because of juror misconduct. He also asserts that he was denied his constitutional right to an impartial jury. We review a trial court's decision to deny a motion for a new trial for an abuse of discretion. People v Miller, 482 Mich. 540, 544; 759 N.W.2d 850 (2008). A trial court abuses its discretion when its decision falls outside the range of principled outcomes. Id. We review de novo whether a defendant was denied the right to an impartial jury. People v Bryant, 491 Mich. 575, 595; 822 N.W.2d 124 (2012).
B. ANALYSIS
Under both the Michigan Constitution and the United States Constitution, a criminal defendant has the right to be tried by an impartial jury. Const 1963, art 1, § 20; U.S. Const, Am VI. "A juror's failure to disclose information that the juror should have disclosed is only prejudicial if it denied the defendant an impartial jury." Miller, 482 Mich. at 548. The juror's misconduct "must be such as to reasonably indicate that a fair and impartial trial was not had . . . ." Id. at 548 (quotation marks and citation omitted). Jurors are presumed to be impartial, and a defendant bears the burden of establishing "that the juror was not impartial or at least that the juror's impartiality is in reasonable doubt." Id. at 550.
Fisher argues that the trial court erred by finding that juror KM did not know Lori Cizek. He submitted documentary evidence showing that KM and Lori Cizek went to high school together and were both in the school chorus. However, he failed to provide any evidence that KM knew that she had any connection with Lori Cizek before the trial. KM testified that she was not aware of Lori Cizek-then known as Lori Haikala-when she graduated in 1984, and stated that she "never hung around with anybody from [her] graduating class." She instead spent time with people from a nearby town. She also testified that she could not say "who was in chorus with me." Further, even if KM did know Lori Cizek in high school, her limited contact with Lori Cizek 40 years earlier is not sufficient to show that KM was biased. See People v Rose, 289 Mich.App. 499, 529; 808 N.W.2d 301 (2010) (concluding that the juror was not biased because of decades-old interactions and limited recent interactions with the victims' family).
Fisher also argues that KM did not disclose that her family member played in the same basketball league as Fisher's daughter. Fisher has not provided any evidence that KM knew that Fisher's daughter played in the same basketball league as her daughter until KM attended a basketball game a day after the trial concluded.
Fisher also argues that KM did not disclose her "connections" to Irontown Pasties. Neither the trial court nor the lawyers, however, asked any of the potential jurors whether they had any connections to Irontown Pasties and Fisher has not explained why KM's patronage of Irontown Pasties would make her partial. Further, KM testified that she did not know Lori Cizek was a co-owner of Irontown Pasties.
Fisher also argues that his lawyer would have used a peremptory challenge to remove KM if he knew of her connections to Lori Cizek and Irontown Pasties. However, "[t]he denial of the right to challenge jurors peremptorily does not, by itself, deprive a criminal defendant of the right to an impartial jury." People v Kabongo, __ Mich. App__, __; __ N.W.2d __ (2021) (Docket No. 159346); slip op at 52. Instead, Fisher bore the burden of establishing that KM was partial or that her impartiality was in reasonable doubt. See Miller, 482 Mich. at 550. Here, KM told the defense lawyer that she was willing to start this case with an open mind, and that "everybody is innocent until proven guilty." And, although Fisher presented documentary evidence suggesting that KM might have known Lori Cizek while they were in school and that she had visited the pasty shop before, the trial court found that the evidence did not establish that Fisher was denied an impartial jury. Having reviewed the record, we discern no clear error in the court's finding. Any connection KM might have had with Lori Cizek would have ended in 1984 when they graduated high school. KM did not have any contact with her thereafter. Because Fisher was not denied an impartial jury, he is not entitled to a new trial. See Miller, 482 Mich. at 550.
Affirmed.